Citation NR: 9614356
Decision Date: 05/22/96 Archive Date: 06/04/96
DOCKET NO. 91-41 550 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to benefits under 38 U.S.C.A. § 1151 (formerly
§ 351) (West 1991) for additional disability as a result of a
hemorrhoidectomy and sphincterotomy performed in a Department
of Veterans Affairs medical facility in July 1989.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from June 1977 to June
1981. He also had prior unverified service.
This appeal arose from a December 1990 rating decision of the
Los Angeles, California, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to benefits
under the provisions of 38 U.S.C. § 351, finding that there
was no evidence of accident, negligence, or lack of due care
on the part of VA.
After certification of this case to the Board, it was subject
to a VA-wide stay of cases affected by Gardner v. Derwinski,
1 Vet.App. 584 (1991), pending further appellate review of
Gardner. The case was remanded to the RO in March 1992 in
compliance with this stay. The decision by the Court was
subsequently affirmed, Gardner v. Brown, 5 F.3d 1456
(Fed.Cir. 1993), aff'd 115 S.Ct. 552 (1994) and the stay on
adjudication of cases affected by Gardner involving claims
for benefits under 38 U.S.C.A. § 1151 was lifted in January
1995. In April 1995, the case was returned to the Board for
adjudication. In September 1995, this case was remanded for
further development. Following this remand, this case was
returned to the Board in March 1996.
It is noted that the RO did not issue another rating action
or a supplemental statement of the case which addressed the
relevant evidence received after the remand. However, it is
found that this procedural defect is harmless in nature,
given the decision in this case.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that the leakage that he
experiences after a bowel movement due to the
hemorrhoidectomy has resulted in additional disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
files. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appellant's claim to benefits
pursuant to 38 U.S.C.A. § 1151 (West 1991) should be granted.
FINDINGS OF FACT
1. The appellant underwent surgical repair of hemorrhoids at
a VA hospital in July 1989.
2. Consequent to the 1989 hemorrhoid surgery at a VA
hospital, the appellant developed incontinence following
bowel movements.
3. In a VA outpatient treatment record from November 1989
incontinence after bowel movement, possible weakness
secondary to operation (hemorrhoidectomy and sphincterotomy)
was reported.
4. The incontinence following a bowel movement is not shown
to be a necessary consequence or certain or close to certain
result of the operation hemorrhoidectomy and sphincterotomy.
CONCLUSION OF LAW
Additional disability was shown to be the result of VA
surgical treatment within the meaning of the applicable law
and regulations. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R.
§ 3.358(a),(c)(2) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107(a). That is, we find that he has presented a
claim which is plausible. We are also satisfied that all
relevant facts have been properly developed. The veteran's
representative, in the April 1996 Informal Hearing
Presentation, has requested that this case be temporarily
forwarded to the veteran's current location so that the
requested VA examination can be conducted. However, in light
of the decision in this case, such development is
unnecessary. Therefore, no further development is required
in order to comply with the duty to assist mandated by 38
U.S.C.A. § 5107(a) (West 1991).
Review of the record shows that the veteran was hospitalized
at a VA facility in July 1989, after complaining of bright
red bloody stools and burning pain for the previous four
months. Topical treatments had provided some relief, but he
still experienced itching, burning and bright red stool. His
admission diagnosis was hemorrhoid versus fissure. The plan
was to perform a hemorrhoidectomy versus a sphincterotomy.
He was informed of the possible risks of the procedures, to
which he expressed understanding, and he signed a consent
form. The surgery was performed on July 6, 1989. Two small
external hemorrhoids were seen. While there was no open
fissures, there was induration and scarring in the anterior
midline suggestive of recurrent fissures in that area. A
hemorrhoidectomy and a lateral subcutaneous internal
sphincterotomy were performed. The surgical report indicated
that the veteran had tolerated the procedure. His post-
operative course was uneventful, save for some complaints of
rectal pain. The assessment at discharge on July 8, 1989
noted that he was ambulating, and the anal area was in good
condition. There was no rectal bleeding and no purulent
drainage.
On July 26, 1989, the veteran present at the General Surgery
Clinic, complaining of continuing pain and some bright red
blood per rectum. Drainage was also noted. The physical
examination noted that the wound looked "OK." However, there
was a little pus drainage in the perianal region. On August
2, his wound was noted to be healing well, and on September
6, no drainage was present. On October 4, he present at the
clinic with seepage and some bright red blood per rectum. He
noted that this seepage occurs for about two hours after a
bowel movement. The objective examination revealed that
there were no external hemorrhoids and the sphincter tone was
normal. An anoscopy showed that there was mild to moderate
erythema and no active bleeding. There was also mild to
moderate hemorrhoidal tissue present. The assessment was
mild and worsening incontinence. On November 1, 1989, the
veteran was still complaining of experiencing drainage for
one to two hours after a bowel movement. The objective
examination showed some scant blood in the anal area, and the
anal sphincter tone was good. The assessment was
incontinence after bowel movements, status post
sphincterotomy, possible weakness secondary to operation. A
note from the operating surgeon indicated that it was felt
that the sphincter had been separated too much. It was then
noted that there was continence, but that leakage would occur
whenever the sphincter was relaxed, as after a bowel
movement. He continued to complain about this leakage in
January and April 1990.
In February 1991, the veteran presented with complaints of a
serous yellowish drainage that had been present since the
July 1989 hemorrhoidectomy and sphincterotomy. He stated
that this drainage had increased in quantity in the previous
six months. An anoscopy performed in the clinic was
unremarkable. The examination of the rectum revealed no
masses but there was slight tenderness in the right inferior
quadrant. He was admitted with a diagnosis of possible anal
fistula. During his hospitalization, a rigid sigmoidoscopy
was conducted in order to establish the presence of an anal
fistula. This procedure revealed the presence of pruritis
ano. However, there was no anal fistula. Following the
procedure, there was some tenderness and pain but very little
bleeding. The final assessment was fistula ruled out.
Analysis
38 U.S.C.A. § 1151 (West 1991) provides that a veteran who
has been injured as the result of VA medical or surgical
treatment, and not as a result of the veteran's own willful
misconduct, shall be awarded compensation if that injury
results in additional disability, in the same manner as if
such disability were service-connected.
The Board notes that in Brown v. Gardner, 11 S.Ct. 552
(1994), the U.S. Supreme Court held that 38 C.F.R.
§ 3.358(c)(3) was not consistent with the plain language of
38 U.S.C.A. § 1151 (West 1991) with respect to the presence
of fault or accident requirement. However, the validity of
the remainder of the implementing regulation has not been
questioned. See Gardner, 115 S.Ct. 552, 556 n.3 (1994).
The remaining relevant sections of 38 C.F.R. § 3.358 (1994),
provide that in determining whether additional disability
exists following medical or surgical treatment, the physical
condition for which the beneficiary sought treatment will be
compared with the physical condition resulting from the
disease or injury on which the claim for benefits is based.
See 38 C.F.R. § (b)(1),(b)(1)(i), (ii) (1994). The
regulation further provides that compensation is not payable
for the continuance or natural progress of the disease or
injury for which surgical treatment was authorized.
38 C.F.R. § 3.358(b)(2) (1994). Furthermore, in determining
whether such additional disability resulted from disease or
injury or an aggravation of an existing disease or injury
suffered as a result of (in this case) surgical treatment,
the following consideration will govern: It will be
necessary to show that the additional disability is actually
the result of such disease or injury or an aggravation of an
existing disease or injury and not merely coincidental
therewith. 38 C.F.R. § 3.358(c)(1) (1994).
In March 1995, the Department of Veterans Affairs issued an
interim final rule amending 38 C.F.R. § 3.358 (1994). In
pertinent part, 38 C.F.R. § 3.358(c)(3) was revised to read
as follows:
Compensation is not payable for the necessary
consequences of medical or surgical treatment or
examination properly administered with the express
or implied consent of the veteran, or, in
appropriate cases, the veteran's representative.
"Necessary consequences" are those which are
certain to result from, or were intended to result
from, the examination or medical or surgical
treatment administered. Consequences otherwise
certain or intended to result from a treatment will
not be considered uncertain or unintended solely
because it had not been determined at the time
consent was given whether that treatment would in
fact be administered.
60 Fed.Reg. 14.222 (1995) (to be codified at 38 C.F.R.
§ 3.3580.
Pursuant to 38 U.S.C.A. § 1151 (West 1991), the appellant is
entitled to compensation for additional disability he
currently suffers which is found to result from other than a
certain or close to certain result of the treatment or
necessary consequence of the treatment.
After a careful review of the evidence of record, in
conjunction with the applicable law and regulations, it is
found that entitlement to benefits pursuant to 38 U.S.C.A.
§ 1151 (West 1991) is warranted. The July 1989 hospital
admission report indicated that the veteran had no
difficulties with drainage or seepage after bowel movements
prior to his surgery. In July, he underwent a
hemorrhoidectomy and a sphincterotomy at a VA facility.
Subsequent to those procedures, he developed a weakness in
the sphincter, which permitted seepage after bowel movements.
In fact, a VA outpatient treatment record from November 1989
diagnosed possible weakness secondary to the operation. The
operating surgeon also noted that the sphincter had been
separated too much. VA hospital records from February 1991
noted his complaints of continuing drainage. He was,
therefore, admitted so that a possible cause of this
drainage, that is, an anal fistula, could be ruled out. Such
a cause was specifically ruled out, following a
sigmoidoscopy.
Therefore, the record adequately establishes that the
appellant has additional disability, specifically, weakness
of the sphincter secondary to the hemorrhoidectomy and
sphincterotomy performed at a VA hospital.
ORDER
Entitlement to compensation benefits under the provisions of
38 U.S.C.A. § 1151 (West 1991) for weakness of the sphincter
and resultant incontinence is granted.
C. P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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